Supreme Court to Determine Whether State Government Violated the First Amendment Through Coercion

In National Rifle Association v. Vullo, the Supreme Court considers when a state actor crosses the line from persuasion to coercion in encouraging private parties to engage in viewpoint discrimination. The New York State Department of Financial Services (DFS), under the leadership of Maria Vullo, investigated insurance programs endorsed by the National Rifle Association (NRA). After the Parkland shooting, Vullo issued guidance and statements encouraging banks and insurers to assess and potentially end affiliations with gun promotion organizations by citing reputational risks. Several firms cut ties with the NRA, prompting the NRA to file suit against Vullo, claiming their free speech and equal protection rights had been violated.

The district court refused to dismiss the First Amendment claim because it identified factual questions about Vullo’s qualified immunity that needed to be answered. The Second Circuit reversed and reasoned that the First Amendment protects against abridgment of free speech by government officials while also allowing government officials to have the responsibility to address public concerns. The Second Circuit also said the NRA did not show that Vullo’s conduct was coercive or, even if coercive, Vullo’s actions as a regulator/public official did not violate any clearly established law because she appeared to act reasonably and in good faith.

In its Supreme Court merits brief, the NRA argues that Bantam Books v. Sullivan, 372 U.S. 38 (1963), prohibits informal suppression or penalizing of speech through private intermediaries just like direct censorship. While writing an op-ed criticizing the NRA, for example, does not violate the First Amendment, Vullo used her political authority to threaten regulatory repercussions for banks and insurance companies who would not cut ties with the NRA, thereby penalizing the NRA for its political advocacy. Bantam Books holds that the First Amendment prohibits political coercion that threatens official retribution for noncompliance, as understood by a reasonable person. The factors to aid in identifying whether government speech is coercion are “(1) the authority of the government to speak over those [the official] is addressing; (2) the content and purpose of the communications; and (3) the effect of the government’s conduct on its target audience.”

According to the NRA, while no one factor is dispositive, all three support a conclusion that Vullo engaged in prohibited coercive speech. First, Vullo had the power to investigate, revoke, or deny licenses, employ monitors, and impose fines on regulated companies. Second, Vullo went beyond expressing her opinion about firearms by issuing formal Guidance Letters, investigating or meeting with regulated entities to ensure compliance, and formally directing all banks and insurers to act promptly by considering the “reputational risk” of associating with “the NRA and other gun promotion groups” in their business dealings. The NRA alleges that Vullo’s office followed through on the threats, fining some regulated entities that did not cut off ties with the NRA while granting leniency to others who did. Third, many organizations followed Vullo’s requests, cutting off the NRA, and some out of apparent fear that they would lose the ability to operate in New York if they did business with the NRA.

Vullo argues that the Supreme Court lacks jurisdiction because its decision would be purely advisory, given Vullo’s assertion of qualified immunity. Vullo also argues that the NRA failed to state a claim because it does not show that the DFS targeted the NRA’s speech rather than its conduct, and because the letters the NRA relied on and enforcement actions by Vullo do not show that insurers or banks would be harmed by continuing to do business with the NRA. The Solicitor General asked to participate as amicus curiae, supporting neither party. The Solicitor General argues that some, but not all, of the NRA’s allegations support a First Amendment violation. For example, the Solicitor General says, Vullo’s alleged meeting with an insurer where she promised not to enforce certain infractions if the insurer ceased providing insurance to “gun groups, especially the NRA,” if true, would be a straightforward First Amendment violation. Other statements, though, especially viewed in isolation, should be considered government speech or regulatory enforcement.

At oral argument, several Justices attempted to tease out what the First Amendment violation was and, specifically, what speech was at issue. Justice Alito wondered where the line is between a government official threatening their authority and a government official who has no authority, yet encourages a certain behavior, and where this particular case fits. Justice Jackson seemed particularly interested in whether this case was about coercion directed at the NRA’s conduct or speech because the government can regulate conduct but not speech. Justice Barrett asked whether the Court needed to break new ground beyond Bantam Books to decide this case. Justice Kagan’s questions focused on the NRA’s allegations of Vullo’s statements about “reputational risk” and whether those allegations could support a First Amendment violation. Justice Sotomayor was interested in how the positions of the NRA and the Solicitor General differed.

The case was argued on March 18, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s forthcoming opinion.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, A. Joseph Duffy, IV., or Heming Xu.